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TMI Blog2021 (5) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... y which the demand contained in the six show cause notices has been confirmed and its recovery has been ordered under rule 14 of the CENVAT Credit Rules 2004 [CENVAT Rules] read with section 73(1) of the Finance Act 1994 [The Finance Act]. 2. The appellant is a provider of inter-alia, telecommunication services to customers and business support services to fellow telecommunication service providers. The appellant claims to have discharged service tax liability on such services. Being a provider of output services, the appellant avails CENVAT credit on inputs, inputs services and capital goods under the provision of the CENVAT Rules. 3. The issue involved in this appeal is about the eligibility of the appellant to claim CENVAT credit on to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expeditiously, within the current financial year. Compliance/difficulty faced in recovering such irregularly availed credit, if any, may be reported to Board, by 15th March, 2008." (emphasis supplied) 5. As noticed, above six show cause notices had been issued to the appellant. The dates of show cause notices, the period involved and the amount of CENVAT credit involved are contained in the following table: Show Cause Notice Period CENVAT Credit 13.04.2006 October, 2004 to September, 2005 14,77,71,154 /- 18.10.2007 April, 2006 to August, 2007 11,27,48,506 /- 25.09.2008 September, 2007 to March, 2008 21,96,99,445 /- 07.08.2009 April, 2008 to December, 2008 61,16,224 /- 18.09.2012 April, 2011 to March, 2012 5,70,264 /- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner Central Excise, Pune - lll [2014 (35) S.T.R. 865 (Bom)]. 8. Learned Authorized Representatives of the Department also submitted that the decision of the Delhi High Court in Vodafone Mobile Services was assailed before the Supreme Court and notice has been issued in the Special Leave Petition. Thus, in view of the decision of the Supreme Court in Union of India vs. West Coast Paper Mills Limited [2004 (164) E.L.T. 375 (S.C.)], reliance should not been placed on the decision of Delhi High Court in Vodafone Mobile Services. 9. The submissions advanced by the learned counsel of the appellant and the learned Authorized Representatives for the Department has been considered. 10. The Delhi High Court in Vodafone Mobile Services fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issue is as follows: "53. On examination of the definition and the decisions, the court is of the considered opinion that the term "all goods" mentioned in Rule 2(k) of the Credit Rules would cover all the goods used for providing Output Services, except those which are specifically excluded in the said Rule. Therefore, the definition is wide enough to bring all goods which are used for providing any output service. Further, from the decisions of the Supreme Court and other judgments referred to previously, the test applicable for determining whether inputs are used in the manufacture of goods is the "functional utility" test. If an item is required for providing out the output services of the service provider on a commercial scale, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. (emphasis supplied) 16. The third question framed by the Delhi High Court is whether the Tribunal erred in applying the nexus test with reference to MS angles and channels as according to the appellant what was bought to the site were towers, shelters and accessories in CKD/SKD conditions for providing services? 17. The finding on this issue is contained in paragraph 56 of the judgment of the Delhi High Court and it is as follows: "56. The inputs such as MS angles and channels are used for the providing infra-support service/telecom service. To apply the term "used for" the definition of inputs, there should be a nexus between the inputs goods and the output service. In the opinion of this court, clearly goods in question have gon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied) 20. Question No. 5 as framed by the Delhi High Court is whether emergence of immovable structure at intermediate stage (assuming without admitting) is a criterion for denial of CENVAT credit? 21. The finding is contained in paragraph 73 of the judgment of the Delhi High Court and it is as follows: "73. The conclusion of CESTAT, denying the assessee CENVAT credit on the premise that the towers erected result in immovable property, is erroneous and plainly contrary to Solid and Correct Engineering (supra). The towers that are received in CKD condition, are erected at site, subsequently, giving rise to a structure that remains, safe and stable (commercial reasons of use). The fact that in the intermediate stage, an immovable st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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